Peabody N.E., Inc. v. Department of Transportation

BERDON, J., with whom MCDONALD, J., joins,

dissenting. The majority today permits an injustice to stand uncorrected. It does so by ignoring the plain meaning of General Statutes § 52-592 (a),1 the remedial purpose of the statute, and the mandate of liberal construction that governs our interpretation.

Section 52-592 (a) provides in pertinent part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits [for any of various enumerated reasons], the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . .”

In the present case, the plaintiff asserted a third party complaint against the defendant on two separate occasions; each of these complaints was timely. After both of these complaints had been dismissed2 (and after the statute of limitations had expired), the plaintiff asserted this direct action against the defendant. By the time the plaintiff asserted the direct action, more than one year had passed since the earlier third party complaint was dismissed, but less than one year had passed since the later third party complaint was dismissed. In my view, the plaintiff was entitled to commence the direct action, which it asserted “within one year after the determination of’ an action “commenced within the time limited by law” (i.e., the later third party complaint).

*130This result comports with the plain meaning of § 52-592 (a), which permits a plaintiff to “commence a new action . . . for the same cause” within one year of the dismissal of “any action, commenced within the time limited by law . . . ,”3 (Emphasis added.) As a matter of rudimentary syntax and common sense,4 it makes no difference whether the plaintiff has asserted prior, unsuccessful actions. Significantly, the statute does not say that the new action must be commenced within *131one year of the dismissal of the first action that the plaintiff commenced within the time limited by law. If the legislature had wished to create such a regime, it knew very well how to do so.

To shift focus somewhat, § 52-592 (a) also permits a plaintiff to “commence a new action . . . for the same cause” within one year of the dismissal of “any action, commenced within the time limited by law, [that] has failed one or more times to be tried on its merits.”5 (Emphasis added.) In order to make coherent sense of the entire statute, the terms “for the same cause” and “any action” must “include the most recent lawsuit filed by the plaintiff within the statute of limitations period.” Ayala v. Zachary, Superior Court, judicial district of Waterbury, Docket No. 094633 (May 25, 1990) (1 Conn. L. Rptr. 671, 672). This interpretation is necessary in order to give meaning to the statutory phrase “one or more times.” Moreover, “[t]his construction recognizes the remedial nature of [§ 52-592 (a)] by extending the limitation period while at the same time addressing the concerns . . . about indefinite extensions of the applicable statute of limitations.” Id.

My reading of the statute also comports with the fundamental principle that statutes of limitation exist, in part, “to promote justice by preventing surprises through the revival of claims that have been allowed to slumber . . . .” (Internal quotation marks omitted.) Bowen v. City of New York, 476 U.S. 467, 481 n.13, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). In the present case, the plaintiff gave the defendant timely notice that it intended to pursue its claim. Significantly, the defendant has not claimed that it has been prejudiced, that it was the victim of deception, or even that it had any reason to believe that the plaintiff would not pursue its claim.

*132If there were any doubts concerning any of my conclusions about the meaning of § 52-592 (a), the rule that we must liberally construe remedial statutes would be sufficient to dispel them.6 Predictably, the majority has ignored this mandate. Moreover, the majority does no more than pay lip service to what it describes as “the strong policy favoring the adjudication of cases on their merits rather than the disposal of them on the grounds enumerated in § 52-592 (a).”

The majority declines to read § 52-592 (a) in a manner that makes sense of the statutory language or acknowledges either the mandate of liberal construction or the strong public policy favoring adjudication of cases on the merits. Instead, my colleagues in the majority have placed heavy reliance upon Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990). The majority has put its eggs in the wrong basket.

To begin with, the facts of Pintavalle are materially different from the facts of the present case. In Pintavalle, the plaintiff asserted only one action within the statute of limitations. That action was dismissed. Id., 414. Several months after the statute of limitations had expired, the plaintiff commenced a second action.7 This latter action was dismissed as well. Id. More than one year after the plaintiffs only timely action had been dismissed (but less than one year after the plaintiffs untimely second action had been dismissed), the plaintiff asserted a third action. Id., 414-15. The plaintiff claimed that this third action fell within the scope of *133§ 52-592 (a) because “the legislature intended to permit plaintiffs to bring a potentially unlimited number of suits as long as each action is brought within one year of the failure of the prior action.” Id., 416.

The court in Pintavalle properly recognized that the plaintiff’s argument “defeat[s] the basic purpose of statutes of limitation, namely, promoting finality in the litigation process.” Id., 417. This conclusion has absolutely nothing at all to do with the present case. Because the plaintiff in this case asserted the action upon which it relies8 before the statute of limitations had expired, the direct action is saved by operation of § 52-592 (a). In sharp contrast to the position advocated by the plaintiff in Pintavalle, my interpretation of § 52-592 (a) contains a built-in time limit: the protection afforded by the statute expires one year after the determination of the latest action “commenced within the time limited by law.” This is a far cry from the “potentially limitless extension” that the Pintavalle court rejected. Pintavalle v. Valkanos, supra, 216 Conn. 417.

The majority emphasizes the following line from Pintavalle: “under the provisions of § 52-592 (a), ‘original action’ means the first action filed within the time allowed by the applicable statute of limitations.” Id., 419. The majority has taken this line out of context. In the very next sentence, the Pintavalle court emphasized that “[t]his interpretation is consistent with the plain meaning of the statute and protects the policy concerns underlying statutes of limitation.” (Emphasis added.) Id. As I have explained, the policy concerns underlying this interpretation of § 52-592 (a) are limited to the kind of “potentially limitless extension” sought by the plaintiff in Pintavalle. Id., 417. For this reason, we must recognize a similar limitation upon the meaning that the Pintavalle court ascribed to the statute.

*134Moreover, the line that the majority has extracted from Pintavalle has nothing to do with the facts of that case, in which the plaintiff asserted only one action within the statute of limitations. Accordingly, everything that the court said about “the first action filed within the time allowed by the applicable statute of limitations” is pure dicta, wholly irrelevant to the resolution of the controversy between the parties.9 (Emphasis added.) Id., 419.

Significantly, my interpretation of § 52-592 (a) is consistent with the holding of Pintavalle. The plaintiff in that case commenced his third action more than one year after the trial court had dismissed the only action that the plaintiff had asserted within the statute of limitations. Accordingly, the Pintavalle court’s conclusion that the plaintiff could not take refuge in the shelter of § 52-592 (a) comports with my analysis of the plain meaning of the statute.

Finally, the dicta in Pintavalle upon which the majority hangs its hat finds no support in the language of § 52-592 (a). The statute refers to two different actions: (1) “any action, commenced within the time limited by law” (the original action) and (2) a “new action . . . for the same cause [commenced] at any time within one year after the determination of the original action . . . .” It is apparent that the legislature used the term “original action” in order to refer back to “any action commenced within the time limited by law” — which could be the first timely action that the plaintiff asserted or the twenty-first.10 (Emphasis added.) There is nothing *135in the text of the statute to support the Pintavalle court’s dicta that the “original action” must be the plaintiff’s first timely action.11 If the legislators had meant what the dicta in Pintavalle says they meant, then they would have drafted a radically different statute.12 If there were any doubt that we should reject the dicta in Pintavalle, the mandate of liberal construction would be sufficient to dispel it.

In my view, the majority has disregarded the text of § 52-592, the purpose of statutes of limitation in general and of § 52-592 (a) in particular, and the mandate of liberal construction. Worst of all, the majority’s mindless formalism does violence to the strong public policy that — as the majority concedes — animates § 52-592 (a).

Accordingly, I dissent.

Section 52-592 was amended by Public Acts 1998, No. 98-20, §§ 1 and 2, which added subsection (e). That amendment is not relevant to the present case. In the interest of clarity, references herein are to the current revision.

It is undisputed that the dismissal of each of the plaintiffs third party complaints fell within the scope of § 52-592 (a).

Provided, of course, that the dismissal falls within the scope of § 52-592 (a).

“In interpreting a statute, common sense must be used .... Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980); accord Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996); Trumbull v. State, 206 Conn. 65, 80, 537 A.2d 431 (1988) ([c]ommon sense ... is a highly significant guide to statutory interpretation). The law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results. . . . Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984). We consider the statute as a whole with a view toward. . . obtaining] a sensible and rational overall interpretation. Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 130, 676 A.2d 369 (1996). We have long followed the guideline that [t]he intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. . . . When one construction leads to public mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid [it]. . . . Bridgeman v. Derby, 104 Conn. 1, 8, 132 A. 25 (1926). . . . State v. Anonymous, 237 Conn. 501, 514-15, 680 A.2d 956 (1996); accord State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 495, 709 A.2d 1129 (1998) (Statutes are to be construed in a manner that will not thwart [their] intended purpose or lead to absurd results.

. . . The law favors a rational statutory construction and we presume that the legislature intended a sensible result. . . . Board of Education v. State Board of Education, 243 Conn. 772, 782, 709 A.2d 510 (1998) ([i]f a statute can be construed in several ways, we will adopt the construction that is most reasonable).” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 306-308, 732 A.2d 144 (1999).

See footnote 3 of this dissent.

As Justice Katz and I observed just last year, “§ 52-592 (a) is remedial and is to be liberally interpreted. Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, [56 Conn. 589, 596 (Superior Court 1888)].” (Internal quotation marks omitted.) Ruddock v. Burrowes, 243 Conn. 569, 582, 706 A.2d 967 (1998) (Berdon, J., with whom Katz, J., joined, dissenting); see also Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990) (“§ 52-592 is a remedial statute and must be construed liberally”).

This untimely second action was saved by operation of § 52-592 (a).

That is, the later third party complaint.

According to Black’s Law Dictionary (6th Ed. 1991), dicta “go beyond the facts before court and therefore are individual views of author of opinion and not binding in subsequent cases as legal precedent.” Because dicta are “made without argument or full consideration of the point, [they] are not the professed deliberate determinations of the [author].” Id.

The statute would have been neither accurate nor coherent if the legislature had used the term “any action” in place of the term “original action.”

In fact, nothing in the text of § 52-592 (a) suggests that the term “original action” has any independent, substantive meaning whatsoever. Instead, the context makes it perfectly clear that “original action” is simply a cross reference to “any action commenced within the time limited by law . . . .” General Statutes § 52-592 (a).

Section 52-592 (a) cannot be harmonized with the dicta in Pintavalle without making each of the following fundamental changes to 1he text of the statute: (1) omit the term “any action”; (2) omit the reference to an action that has failed “one or more times”; (3) omit the use of “original action” as a synonym for “any action”; (4) insert a reference to the first action that the plaintiff asserts within the statute of limitations; and (5) change the use of “original action” so that it is a synonym for the first timely action that the plaintiff asserts.